Charles Lane | Rand Paul's 'long-discredited' view

May 22, 2010

Written by

Charles Lane

The Washington Post

My sympathy for Rand Paul's straight talk on farm subsidies and Social Security has just been nullified by his musings about the Civil Rights Act. It's simply astonishing in this day and age that a major-party nominee for the U.S. Senate would try to breathe life into the long-discredited notion that the Constitution might protect an individual business owner's "right" to exclude customers on the basis of race.

Let's accept Paul's assurances that his views on this matter are borne of libertarian doctrine and not actual racism. I believe him when he says he would never personally favor discrimination in any business that he operated or frequented. The problem remains: His argument makes no sense. There is no such thing as "private" discrimination with respect to a public accommodation. Like any other claimed property right, it could not exist without government support.

Suppose an African-American customer sits down at a "whites only" restaurant and asks for dinner. The owner tells him to leave. The customer refuses and stays put. What are the owner's options at that point? He can forcibly remove the customer himself, but, as Paul concedes, that could expose the restaurateur to criminal or civil liability. So he'll have to call the cops. When they arrive, he'll have to explain his whites-only policy and ask them to remove the unwanted black man because he's violating it. But they can only do that on the basis of some law, presumably trespassing. In other words, the business owner's discriminatory edict is meaningless unless some public authority enforces it.

Conversely, it is precisely because of this nexus between private discrimination and public enforcement that the larger community, through the political and judicial process, acquires a valid interest in legislating against discrimination. The public is entitled to say whether their tax money should pay for arresting black trespassers on whites-only property.

The Constitution poses no obstacle to such legislation, either state or federal, and never did. Indeed, the enactment of the 14th Amendment was followed seven years later by a national public accommodations desegregation law. The Supreme Court's ruling striking it down in 1883 was a racially biased legal error. Plessy v. Ferguson in 1896 was also wrongly decided.

The constitutional aberration, in fact, was Southern legislation that required segregation in various business establishments. To cite just one of many examples, a 1928 Alabama state law mandated racially separate toilet facilities in hotels and restaurants. Segregation was never really a matter of individuals exercising their free speech or property rights, as Paul implied. It was a tight web of mutually reinforcing public and private rules.

I'm afraid that the Ron/Rand Paul worldview founders on these sorts of contradictions all the time. It's amazing that there's room for it in today's Republican Party, or anywhere on the political spectrum, for that matter.

Charles Lane is a Washington Post opinion writer. This appeared Friday on the Post's PostPartisan blog.